June 22, 2012June 22, 2012

Welcome & IntroductionsWelcome & Introductions

Seth Schofield, Assistant Attorney General

Christine Ayers, BWSC Chief Legal Counsel, MassDEP

US 1st Circuit Appeals Court Ruling

Litigation Regarding MOSPRA and Coast Guard Rule for Buzzards Bay

2005: the U.S. (acting on behalf of the USCG) sues the Commonwealth, claiming that MOSPRA is unconstitutional

2006: the District Court rules that federal law “preempts” MOSPRA and enjoins its enforcement

2007: the Court of Appeals disagrees, in part, and reinstates MOSPRA’s tugboat escort , enhanced personnel, and certificate of financial assurance requirements.

2007: the U.S. again asks the District Court to enjoin MOSPRA’s escort and enhanced personnel requirements based on a 2007 USCG Final Rule for Buzzards Bay.

2008: the Commonwealth sues the U. S. claiming that the USCG violated the National Environmental Policy Act when it issued the Final Rule.

First Circuit Finds that the Coast Guard Failed to Comply with NEPA

2010: the District Court rules that the USCG violated NEPA, excuses the violation as harmless, and goes on to rule that the USCG’s Final Rule invalidates MOSPRA’s escort and personnel requirements

- “can only be described as an act of procedural hubris”; “supercilious denigration and dismissal of thoughtful environmental concerns.”

2011: the Court of Appeals disagrees, ruling that the USCG’s violation was not harmless.

- “shortcomings are troubling, but the sockdolager is that the [USCG] did not perform any environmental analysis at all. Indeed, it made no site-specific appraisal of the potential environmental effects of its action. It gave the matter the barest of glances and . . . made no “reasoned finding.’”

Oil Spill Act Requirements Reinstated

U.S. Court of Appeals lifts injunction that prevented

implementation of;M.G.L. c. 21M, s. 4, Manning of towing vessels and

barges

M.G.L. c. 21M, s. 6, Tugboat Escort requirements in Buzzards Bay

District Court remands Final Rule to the USCG forcompliance with NEPA

Manning Requirements (M.G.L. c. 21M, s 4) Watch Requirements for Towing Vessels (M.G.L. c. 21M, s. 4(a)):

All tow vessels towing or pushing a single-hulled tank barge carrying 6,000 or more barrels through Buzzards Bay and the Cape Cod Canal must have at least 1 licensed deck officer or tow vessel operator serving exclusively as a lookout with no other concurrent duties during the transit of Buzzards Bay and the Canal.

All tow vessels towing or pushing a single-hulled tank barge carrying 6,000 or more barrels through Buzzards Bay and the Cape Cod Canal must have three licensed officers or tow vessel operators onboard during the transit of Buzzards Bay and the Canal.

Tow vessel operators subject to M.G.L. c. 21M, s. 4 must (1) maintain a list of crew members onboard the towing vessel, and (2) log the name of each navigation watch member in the deck log as the member assumes his or her watch duties .

Crew Requirements for Barges (M.G.L. c. 21M, s. 4(b). The crew on a single-hulled tank barge shall consist of 2 personnel, 1 of whom

shall be a certified tanker-man under 46 CFR subpart 12.20 and shall be onboard the tank barge whenever the tank barge is in Buzzards Bay or the Cape Cod Canal.

The crew requirement does not apply to single-hulled tank barges that are not equipped to accommodate personnel on board or if the barge is carrying less than 6,000 barrels of oil.

Tugboat Escort Requirements (M.G.L. c. 21M, s. 6)

Single and double hull tank vessels carrying 6,000 or more barrels of oil must hire a Tugboat Escort to enter or transit "areas of special interest" (M.G.L. c. 21M, s. 6(a))

"Areas of Special Interest" are defined as the waters of Buzzards Bay (including the Cape Cod Canal), Mount Hope Bay, and Vineyard Sound (M.G.L. c. 21M, s. 1)

Fact Sheet "Massachusetts Oil Spill Act Requirements for Tugboat Escorts“ available at: http://www.mass.gov/dep/cleanup/oilsprep.htm

State-funded Pilot (M.G.L. c. 21M, s. 9(b) and 314 CMR 19.05)

As of July 12, 2011, MassDEP will no longer pay for a State Pilot to accompany a vessel towing or pushing a double-hulled tank barge loaded with 6,000 or more barrels of oil through Buzzards Bay and the Cape Cod Canal, even if the tank vessel chooses to provide 24-hour advance notice of the vessel's intent to operate in Buzzards Bay and the Canal

M.G.L. c. 21M, s. 6 mandates that they hire their own Tugboat Escort, so no double hulled tank barge loaded with 6,000 or more barrels of oil will be "unaccompanied by a tugboat escort," as provided in M.G.L. c. 21M, s. 9(b).

24- Hour Advance Notification (M.G.L. c. 21M, s. 9(a) and 314 CMR 19.04)

The owner or operator of a tank vessel carrying 6,000 barrels or more of oil as cargo may continue to provide 24-hour advanced notice to MassDEP of its intent to operate the vessel in Buzzards Bay (Western boundary - the Buzzards Bay Tower at 41o 23.8 N, 71o 02.0 W; Eastern boundary - the Cape Cod Canal buoy at 41o

48.9 N; 70o 27.7 W

MOSPRA Program Operational Changes

Find tug barge escort photo Sabine

SPTE Provided Escort Tug

Operated under contract to MassDEP from March 29, 2010 - July 11, 2011 Escorts Provided by McAllister Towing of Narragansett Bay 228 double-hulled escorts conducted from

Jan 1 – July11, 2011 Cost of $2.1 million

Transition from SPTE to Industry Provided Escort Tug

SPTE contract suspended on July 11, 2011

Tugboat Escort Certification form submitted within 30 days (314 CMR 19.03(1)(c))

Two (2) fully compliant tugboats McAllister Towing ofNarragansett Bay (A.J.McAllister, Sabine)

Two (2) fully compliant tugboats Boston Towing andTransportation (Independence, Justice)

8 non compliant tugs certified for use by waiver authorization

Industry Provided Escort TugBecame effective on July 12, 2011

244 single and double hulled tank barges escorted from July 12, –

December 31, 2011

Voluntary notifications to MEMA of intent to transit continue to be made

Escort coordination and scheduling performed byMcAllister Towing

Escorts conducted by McAllister and Boston Towingand Transportation

Escort Tug WaiversM.G.L. c. 21M, §9(f) and (314 CMR 19.03 (1)(b)) MassDEP may authorize the use of a tugboat that does not meet the definition of a tugboat escort upon determination that exigent circumstances exist

6 waiver requests were approved from Jan 1, – July 11, 2011, (under SPTE contract) to use an escort tugboat that did not meet all specifications

24 waiver requests were approved from July 12, - December 31, 2011, (industry provided escorts) to use an escort tugboat that did not meet all of the specifications

Ongoing Program Implementation Activities

Oil Spill Equipment 76 spill trailers provided to coastal communities andMassDEP regional offices2000’ of 36” boom stored at MMA and New BedfordHarbor 6 spill trailers being procured for Boston Harbor

Annual maintenance and restocking of spill trailersconducted by MassDEP contractor

Equipment deployment and mutual aid SOP Implementation training

Oil Spill Equipment

Geographic Response Plans

MassDEP GRP Project

Five Geographic Response Plans have been developed forMassachusetts coastal areas

Mt Hope Bay & Taunton River GRP development began June2012

Mt Hope Bay & TR GRP scheduled for completion Fall June 2012 http:/Final GRP will be presented to SENE area committee

GRP Testing & Training Program

Uses local first responders and MassDEP spill equipment

Test selected GRP strategy

Participants USCG, MassDEP, Harbormaster, Fire

Department & Contractors Document deployment test & lessons learned

GRP Testing & Training Program Increasing participation from local

emergency management agenciesLocal press coverage

Homeland Security Exercise & Evaluation Program (HSEEP) Funding

Elise De Cola Nuka Research & Planning Group, LLC

HSEEP Funding Homeland Security Exercise & Evaluation Program

(HSEEP) is FEMA program that provides standard approach to exercise design, development, conduct, evaluation, and improvement planning.

HSEEP training/exercise grant money available through regional homeland security councils in MA: SERAC (SRPEDD) and NERAC (MAPC)

Local budget cuts were making backfill/OT costs barrier to GRP exercise participation HSEEP funding

HSEEP Funding MassDEP (NUKA) secured funding for OT & backfill costfor local respondersGrant application submitted to SERAC (SRPEDD) and

NERAC (MAPC) Training objectives align with HSEEP

Inter-agency coordination Resource coordination Local oil spill preparedness

Projects FY 2012-13

Continue to monitor compliance w escort tug provisionsDevelop GRP for Mt. Hope Bay & Taunton RiverContinue GRP testing & first responder training Complete double hull/marine pilot risk study Maintain & Restock Response trailersOther projects as funding allows

Oil Spill Prevention Fund Balance

June 11, 2012                    

                     

                     

  FY05 FY06 FY07 FY08 FY09 FY10 FY11 FY12   Totals from Inception

Beginning Balance $0 $1,410,369 $2,838,038 $4,127,537 $4,819,905 $5,267,536 $4,325,975 $3,703,964    

Revenue $1,492,186 $1,817,058 $1,789,321 $1,632,832 $1,639,681 $1,820,054 $3,775,809 $3,544,170   $17,511,111

Expenditures ($81,817) ($389,389) ($499,822) ($940,464) ($1,192,050) ($2,761,615) ($4,397,820) ($572,986)   ($10,835,963)

Accounts Payable                   $0

End Balance $1,410,369 $2,838,038 $4,127,537 $4,819,905 $5,267,536 $4,325,975 $3,703,964 $6,675,148   $6,675,148

                     

                     

  FY12 Revenue as of 4/30/12              

                     

  FY12 expenditures as of 6/11/12              

                     

 

 *Fee increased to $.05/bbl on 4/1/2010  

               

                     

Oil Spill Act Project Expenditures *

  FY2005 FY2006 FY2007 FY2008 FY2009 FY2010 FY2011 FY2012

Oil spill trailers $ 81,817.00 $ 355,211.00 $ 337,849.00 $ 416,689.00 $ 414,416.00 $ 921,008.00    

Trailer maintenance/restocking       $ 18,919.00 $ 20,592.00 $ 21,414.00 $ 30,675.00 $ 41,971.00

Develop GRP’s (BH & SS)     $ 17,158.00 $ 93,275.00 $ 69,650.00 $ 24,620.00 $ 67,356.00 $ 38,472.00

GRP testing /responder training       $ 10,788.00 $ 7,407.00 $ 34,403.00 $ 18,838.00 $ 49,588.00

Threat evaluation/equipment inventory       $ 16,462.00 $ 43,637.00      

Marine pilots program         $ 224,305.00 $ 786,610.00 $ 896,848.00 $ 33,926.00

State provided escort tug         $ 60,933.00 $ 580,971.00 $2,997,078.00 $ 109,720.00

Program Support – OSAAC meetings, web page     $ 22,903.00 $ 42,921.00 $ 14,716.00 $ 8,813.00 $ 13,532.00 $ 1,957.00

Program salaries and support   $ 34,178.00 $ 121,912.00 $ 341,409.00 $ 336,394.00 $ 331,947.00 $ 344,251.00 $ 293,782.00

Off shore boom equipment           $ 51,829.00 $ 17,401.00  

Snare Boom Purchase             $ 11,841.00  

AIS data               $ 3,570.00

                 

Total per Fiscal Year $ 81,817.00 $ 389,389.00 $ 499,822.00 $ 940,463.00 $1,192,050.00 $2,761,615.00 $4,397,820.00 $ 572,986.00

                 

* as of 6/11/2012